Legal experts: Hobby Lobby ruling may have broad implications

Washington D.C., Jul 1, 2014 / 05:06 pm (CNA/EWTN News).-
While the full impact of the Supreme Court’s recent ruling on Hobby Lobby may not yet be clear, legal scholars said that it has the potential to be used in future religious freedom cases.

“This opinion makes clear that for-profit businesses are entitled to the protections of RFRA [Religious Freedom Restoration Act],” said law professor Carter Snead, who serves as director of the Notre Dame Center for Ethics and Culture.

A publicly-traded corporation could potentially be protected, but it would have to establish that it had “a sincerely held religious belief that was threatened by a particular law,” he told CNA.

Snead’s comments came in response to the Supreme Court’s June 30 ruling that Hobby Lobby and similar companies do not have to comply with the federal contraception mandate.

Issued under the Affordable Care Act, the mandate requires employers to offer health insurance covering contraception, sterilization and some drugs that can cause early abortions.

Hobby Lobby’s owners – the Green family – are Christians who object to abortion and say that the mandate forces them to violate their faith.

The Supreme Court said that the mandate violates federal religious freedom laws that prohibit government from “substantially burdening the free exercise of religion” unless doing so is the “least restrictive means” of furthering a “compelling government interest.” In this case, the court said, there are ways to provide free birth control to women, if the government wishes to do so, without infringing on the religious liberty of employers.

The court struck down the mandate for “closely held corporations” that have religious objections to its demands. The IRS defines “closely held corporations” as those with 50 percent or more of their stock held by five or fewer individuals.

While the decision does not concretely address larger publicly-traded companies, legal experts said the logic used in the court decision could potentially be extended to situations as well.

Larger corporations “have exactly the same right” to have their religious beliefs protected as Hobby Lobby does, suggested Robert Destro, director of the Interdisciplinary Program in Law and Religion at The Catholic University of America in Washington, D.C.

“It’s not the role of the federal government to police the internal relationships among shareholders and other corporate stake-holders,” he stated. “These are questions for the boards of directors and shareholders to decide.”

Furthermore, the decision could be cited in future rulings on the scores of non-profit and religiously-affiliated organizations required to abide by a modified version of the mandate offered by the federal government as an “accommodation.”

Snead acknowledged that the Supreme Court did not explicitly rule on these groups, many of which say that the “accommodation” being offered still requires them to immorally facilitate outside insurers in providing the problematic coverage.

However, the language of the Supreme Court’s ruling “made clear” that the government couldn’t “second guess” a religious organization’s “understanding of moral complicity, cooperation, and scandal,” he said, and this could be used in future court decisions.

He pointed to the temporary injunction blocking the mandate, which was granted to the EWTN Global Catholic Network just hours after the Supreme Court ruling.

In granting the injunction, Judge William H. Pryor of the Eleventh Circuit Court of Appeals said that he thinks EWTN is “substantially likely to succeed” in its argument that the mandate and “accommodation” violates its religious freedom

“The Network bases its complaint on the undisputed declarations of a Catholic theologian and the Network’s chief executive about ancient teachings of the Catholic Church. The Network complains that it would violate those teachings and commit a grave sin if it were to comply with the mandate,” Pryor wrote, before adding, “It is neither our duty nor the duty of the United States to tell the Network that its undisputed belief is flawed.”

Destro also suggested that the ruling may have an impact on businesses that have religious objections to same-sex “weddings.”

If Congress or the Obama administration tried to move forward with the proposed Employment Non-Discrimination Act (ENDA) involving sexual orientation and gender identity, it would likely spark a “huge debate over ‘religious exemptions’,” he added.

If such a case came before the Supreme Court, Destro said, it is “very clear” that the four dissenting justices in the Hobby Lobby case would also rule against the businesses, and Justice Anthony Kennedy could be the deciding vote.

One area the Supreme Court’s ruling will likely not affect is state-level contraception mandates. Some 28 states currently require insurers that cover prescription drugs to also cover all FDA-approved contraceptives.

Rather than turning to the First Amendment, the Supreme Court based its ruling on federal law, which is not applicable to the states.

Snead explained that businesses seeking to avoid these mandate would need to invoke the protection of a state religious exemption statute or the First Amendment. “The jurisprudence of the First Amendment is more complicated and difficult for such cases,” he noted.

Destro added that while the states will not be bound by the Hobby Lobby decision, it still “spells trouble” for state-level mandates in those states where religious exemption statues exist.